Courtroom Dramas

For almost a year, the Supreme Court has been deciding the ultimate law of the land with just eight justices—one short of its usual nine members.

The ninth seat has been empty since Justice Antonin Scalia died last February, with the Republican-controlled Senate refusing to consider any nominee until after the election. President Trump is expected to move quickly to fill the Court’s vacancy with a conservative justice.

“Trump has pledged to nominate someone in the mold of Justice Scalia, so if that person gets confirmed, we won’t see a huge change in the Court,” says Jeffrey Fisher, a law professor at Stanford University, in California. 

Trump’s appointment would likely restore the Court to its ideological balance before Scalia’s death: four conservative justices, four liberal justices, and one swing vote (see Eight Isn’t Enough). 

The court already has a full docket of important issues to decide this term. Here are four key cases.

The fashion industry doesn’t usually follow the deliberations of the Supreme Court, but clothing makers are watching this case very closely. It concerns stripes, zigzags, and other designs copyrighted by Varsity Brands, the leading seller of cheerleading uniforms. The Tennessee-based company sued Star Athletica, a Missouri-based rival company, after it started to market uniforms with similar designs.

Copyright law is very complicated, but in general it hasn’t applied to most clothing. A copyright protects the originator of something creative—like a piece of music, a poem, or a photo—from having someone else profit from the copyrighted work. Courts have usually found that clothing’s primary use—to cover our bodies—outweighs its creative aspects, so copyright protection is rarely given for clothing. 

Varsity is hoping to convince the justices that its designs are unique enough, apart from the outfits themselves, to warrant copyright protection for the uniforms. But Star Athletica says those stripes and zigzags are generic. It also argues that the designs are an integral part of the garment itself, which can’t be copyrighted. 

How the Court interprets what’s eligible for copyright protection could have a huge impact on the fashion industry. Blatant knockoffs of high-end fashions by mass-market clothing companies are big business. When a celebrity wears a designer gown to an awards ceremony, a cheaper version is often available at the mall within weeks. A ruling that makes it easier to copyright clothing would hurt the knockoff industry. 

“If suddenly in this case we say that dresses are copyrightable . . . perhaps we’ll double the price of women’s clothes,” said Justice Stephen G. Breyer during oral arguments.

Gavin Grimm is a transgender boy in Gloucester, Virginia. That means he was born female but he identifies as male. When he started 10th grade at Gloucester High School in the fall of 2014, he began referring to himself publicly as a boy.

By then, Gavin (above) had already cut his hair short and started getting testosterone shots. He got permission from the school principal to begin using the boys’ bathroom.

But when the community found out, a massive controversy erupted. Gloucester County’s school board voted to prevent Gavin from using the boys’ bathroom, and he filed a lawsuit, saying the policy violated his civil rights. That lawsuit has now made its way to the Supreme Court. 

Gavin’s lawyers argue that the district’s bathroom policy is unconstitutional under the 14th Amendment, which guarantees all Americans “equal protection of the laws.” It comes at a time of intense debate over transgender rights. Last year, North Carolina passed a law requiring transgender people who are in government buildings to use bathrooms that correspond with the gender on their birth certificates. This law sparked protests, boycotts, and lawsuits. So far, efforts to repeal it have failed. 

“The only thing I ever asked for was the right to be treated like everyone else,” says Gavin, now 17 and a senior. 

But Gary McCaleb, a lawyer with the Alliance Defending Freedom, a group supporting the school board, says the case is about protecting the privacy and safety of all students. “Federal law should not be twisted to require that a male be given access to the girls’ facilities or a female to the boys’ facilities,” he says. 

There’s a chance Gavin’s case will be dismissed. Part of the lawsuit involves whether Gloucester’s policy constitutes gender discrimination, which is prohibited by the federal law known as Title IX. The Obama administration said the bathroom policy was discriminatory, and that the school district was in violation of Title IX and therefore at risk of losing federal education funding. 

But the Trump administration is likely to have a different interpretation, and experts say that could prompt the justices to dismiss the case. No matter what happens, the Court seems likely to decide a transgender rights case at some point.

“It’s an issue that the Supreme Court will be grappling with eventually,” says David Strauss, a law professor at the University of Chicago.  

In 2011, Simon Tam applied to trademark the name of a band he started in Portland, Oregon: the Slants. The U.S. Patent and Trademark Office refused, saying the name is a derogatory term for Asian-Americans. Under federal law, the trademark office may refuse to register trademarks it considers “disparaging.” Tam, who is Asian-American, sued, arguing that he has a First Amendment right to name his band and have trademark protection for the name. A trademark prevents anyone else from profiting from use of a name—Big Mac, for example—without the owner’s permission.

“The question here,” says Lee Rowland of the ACLU, “is can the government, by offering an immense benefit like trademark protection—the possibility of being the next Kleenex or Coca-Cola—can the government make a condition of that benefit that you can’t be offensive?”   

This case has big implications for a much higher-profile one: The National Football League’s Washington Redskins are challenging the trademark office’s 2014 decision to revoke its trademark on the same grounds—that the team’s name offends Native Americans. That case is pending before the Fourth Circuit Court of Appeals. 

The team has argued that the name “Redskins” is meant to honor American Indians, not insult them. But others, including many Native Americans, say the name is offensive and have been urging the team to change it for decades. 

“Regardless of the ruling, the team’s going to face the same question: whether or not they’re willing to continue alienating a large segment of people,” says Deborah Gerhardt, a law professor at the University of North Carolina. “Ultimately, the question is whether having a trademark that many people think is racist is worth it.”

How strictly governments should interpret the concept of separation of church and state is the question in this case involving a Lutheran church in Missouri. Seeking to resurface a playground in 2013, the church applied for a state grant under a program meant to encourage nonprofit groups to make children’s play areas safer. State officials denied the request, and the church sued.

The First Amendment’s Establishment Clause says government can “make no law respecting the establishment of religion.” But there’s long been debate about whether that language requires a complete separation between government and religion. The Missouri constitution prohibits spending public money “in aid of any church.” The church argues that the state constitution violates the 14th Amendment’s equal protection principles and the First Amendment’s guarantee of free exercise of religion. 

This case could help clarify what the separation of church and state really means, says David Strauss, the University of Chicago law professor. 

“There’s this notorious problem with the church-state relationship,” he explains. “The government can’t give too much help to them but also can’t be hostile to them. Drawing that line is very difficult.”